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Confirmation Chaos and Constitutional Corruption

Within hours of hearing the news of Justice Antonin Scalia’s
passing, Senate Majority Leader Mitch McConnell announced that his
caucus would not be holding any hearings or votes on a replacement
nominee until after the election. “Let the people decide” became
the rallying cry of the Republican majority, and all of the party’s
members on the Senate Judiciary Committee signed a letter pledging
fidelity to the #NoHearingsNoVotes plan.

When President Obama announced the nomination of Judge Merrick
Garland a month later, nothing really changed: this wasn’t about
the nominee’s qualifications, but an argument from the political
principle that the gaping hole left by a jurisprudential giant
shouldn’t be filled until the voters in a polarized nation —
who reelected Obama in 2012 but then handed the Senate to the GOP
in 2014 — could have their say.

This seemed like unprecedented obstructionism, though
historically plenty of judicial nominees have never gotten hearings
or votes, and the last time that a Senate confirmed a nomination
made by a president of the opposing party to a high-court vacancy
arising during a presidential election year was in 1888. Indeed,
under recent Republican presidents, Democratic senators ranging
from Joe Biden to Chuck Schumer to Harry Reid announced that they
wouldn’t consider any new nominees until after the election.

That’s literally their prerogative: Just like the Senate can
decline to take up a bill passed by the House, or a treaty signed
by the president, it can surely decide how to exercise its
constitutional power to “advice and consent” on judicial
nominations. This is purely a political matter, with the Senate
staking out how it wants to exercise its power and the voters being
the ultimate judges, as it were, of that tactic. Indeed, if the
Senate decided not to confirm any nomine to any position, it could
do so — and likely pay a high political price unless the
president were so compromised as to lack any popular legitimacy
whatsoever.

Why the Push to Fill the Vacancy?

Why has it come to this? Why all the focus on one office,
however high it might be? Sure, it’s an election year, but that
doesn’t mean that governance grinds to a halt. If Secretary of
State John Kerry died or resigned, it would certainly be a big deal
— with Republicans grilling his would-be successor on
President Obama’s foreign-policy record — but there’s no
doubt that the slot would be filled if someone with generally
appropriate credentials were nominated. Even a vacancy in the
vice-presidency wouldn’t last unduly long, though Republicans would
jockey to extract concessions for not having Speaker Paul Ryan be
President Obama’s designated successor (even if for mere
months).

But of course executive appointments expire at the end of the
presidential term, while judicial appointments long outlast any
president. To take an extreme example, an important ruling on
donor-list disclosures was made this past April by a district judge
appointed by Lyndon Johnson. Justice Scalia himself served nearly
30 years, giving President Reagan legal-policy agenda a bridge well
into the 21st century. And let’s not forget that the Scalia-less
Supreme Court stands starkly split 4-4 on so many controversial
issues: campaign-finance law, the Second Amendment, religious
liberty, executive and regulatory power, to name just a few. In
this already bizarre 2016 election, legal pundits have finally
gotten their wish that judicial nominations are firmly among the
top campaign issues.

If we want to have the
rule of law, we need judges to interpret the Constitution
faithfully and strike down laws when government is exceeding its
authority.

Moreover, this year marks the 25th anniversary of the bitter
confirmation hearings of Justice Clarence Thomas. HBO aired a
reenactment called “Confirmation,” which itself was controversial,
reopening old political wounds regarding its portrayal of what
Thomas referred to as a “high-tech lynching.” Justice Thomas
received the narrowest Supreme Court confirmation in more than a
century, 52-48 — and this less than four years after the
failed nomination that ushered in the poisonous modern era of
confirmation battles, that of Judge Robert Bork in 1987.

Senate Democrats had warned that nominating Bork would provoke a
fight unlike any President Reagan had faced over judges —
after Scalia’s unanimous confirmation the previous year. And so,
the very day that Reagan nevertheless announced this pick, Ted
Kennedy went to the floor of the Senate to denounce “Robert Bork’s
America,” which is a place “in which women would be forced into
back-alley abortions, blacks would sit at segregated lunch
counters, rogue police could break down citizens’ doors in midnight
raids, schoolchildren could not be taught about evolution, writers
and artists could be censored at the whim of the Government, and
the doors of the Federal courts would be shut on the fingers of
millions of citizens.” It went downhill from there, as the
irascible Bork — with an irascible beard — refused to
adopt the now well-worn strategy of talking a lot without saying
anything. A few years later, Ruth Bader Ginsburg would refine that
tactic into a “pincer movement,” refusing to comment on specific
fact patterns because they might come before the Court, and then
refusing to discuss general principles because “a judge could deal
in specifics only.”

History of Confirming Justices

Confirmation processes weren’t always like this. The Senate
didn’t even hold public hearings on Supreme Court nominations until
1916 — and that innovation was driven by the unusual
circumstances of (1) the resignation of a justice (Charles Evans
Hughes) to run against a sitting president (Woodrow Wilson) and (2)
the first Jewish nominee (Louis Brandeis). It wouldn’t be until
1938, with (also-Jewish) Felix Frankfurter, that a judicial nominee
actually testified at his own hearing. In 1962, the part of Byron
White’s hearing where the nominee himself testified lasted less
than 15 minutes and consisted of a handful of questions, mostly
about the Heisman-runner-up’s football-playing days.

What’s changed? Is it TV and social media, the 24-hour news
cycle and the viral video? Is it that legal issues have become more
ideologically divisive? No, it isn’t that there’s been a perversion
of the confirmation process, increasingly demagogic political
rhetoric, or even the use of filibusters. Those are symptoms of the
underlying problem, a relatively new development but one that’s
part and parcel of a much larger problem: constitutional
corruption.

As government has grown, so have the laws and regulations over
which the Court has power. All of a sudden, judges are declaring
what Congress can do with its great powers, what kind of law the
executive branch can write into the Federal Register, and what
kinds of new rights will be recognized. As we’ve gone down the
wrong jurisprudential track since the New Deal, the judiciary now
has the opportunity to change the direction of public policy more
than it ever did. So of course judicial nominations and
confirmations are going to be more fraught with partisan
considerations.

This wasn’t always a problem — in the sense that
partisanship didn’t really mean that much other than rewarding your
cronies. It’s a modern phenomenon for our two political parties to
be so ideologically polarized, and therefore for judges nominated
by presidents from different parties to have notably different
views on constitutional interpretation.

Under the Founders’ Constitution, under which the country lived
under for its first 150 years, the Supreme Court hardly ever had to
strike down a law. If you read the Congressional Record of the 18th
and 19th centuries, Congress debated whether legislation was
constitutional, much more than whether it was a good idea. Debates
focused on whether something was genuinely for the general welfare
or whether it only served, for example, the state of Georgia. “Do
we have the power to do this?” was the central issue with any
aspect of public policy.

In 1887, Grover Cleveland vetoed an appropriation of $10,000 for
seeds to drought-stricken Texas farmers because he could find no
constitutional warrant for such action. In 1907, in the case of
Kansas vs. Colorado, the Supreme Court said that “the proposition
that there are legislative powers affecting the nation as a whole
although not expressed in the specific grant of powers is in direct
conflict with the doctrine that this is a government of enumerated
powers.”

The Changing Role of Judges

We also had a stable system of unenumerated rights that went
beyond those listed in the Bill of Rights to those retained by the
people per the Ninth Amendment. The Tenth Amendment was similarly
redundant of the whole structure: the idea is that we have a
government of delegated and enumerated — and therefore
limited — powers.

Judges play much larger roles today. The idea that the General
Welfare Clause says that the government can essentially regulate
any issue as long as the legislation fits someone’s conception of
what’s good — meaning, that you get a majority in Congress
— emerged in the Progressive Era and was codified during the
New Deal. After 1937’s so-called “switch in time that saved nine”
— when the Supreme Court began approving grandiose
legislation of the sort it had previously rejected — no
federal legislation would be struck down until 1995. The New Deal
Court is the one that politicized the Constitution, and therefore
too the confirmation process, by laying the foundation for judicial
mischief of every stripe — be it letting laws sail through
that should be struck down or striking down laws that should be
upheld.

This is not about the tired old debate about “activism” versus
“restraint.” So long as we accept that judicial review is
constitutional and appropriate in the first place — how a
judiciary is supposed to ensure that the government stays within
its limited powers without it is beyond me — then we should
only be concerned that a court “get it right,” regardless of
whether that correct interpretation leads to the challenged law
being upheld or overturned. For that matter, an honest court
watcher shouldn’t care whether one party wins or another. To
paraphrase John Roberts at his confirmation hearings, the “little
guy” should win when he’s in the right, and the big corporation
should win when it’s in the right. The dividing line, then, is not
between judicial activism and judicial restraint (passivism?), but
between legitimate and vigorous judicial engagement and
illegitimate judicial imperialism.

In that light, the recent confirmation battles — whether
you look at Bork, Thomas, the filibustering of George W. Bush’s
lower-court nominees, or the scrutiny of Sonia Sotomayor’s “wise
Latina” comment — are all a logical response to political
incentives. When judges act as super-legislators, senators, the
media, and the public want to scrutinize their ideology and treat
them as if they’re confirming lifetime super-politicians —
and rightfully so.

Judges as Super-legislators

Sure we can tinker around the edges of the appointment process
with bipartisan commissions, or have set terms or fixed retirement
ages — or we could have scheduling requirements for when
hearings and votes have to occur after a nomination — but all
that is re-arranging the deck chairs on the Titanic. And the
Titanic is not the judicial-nominations process, but rather the
ship of government. The fundamental problem is the politicization
not of the process but of the product, of the role of government,
which began with the Progressive Era politically and was
institutionalized during the New Deal.

Justice Scalia described this phenomenon in his dissent from the
1992 abortion ruling in Planned Parenthood v. Casey:

[T]he American people love democracy and the American
people are not fools. As long as this Court thought (and the people
thought) that we Justices were doing essentially lawyers’ work up
here — reading texts and discerning our society’s traditional
understanding of that text — the public pretty much left us
alone. Text and traditions are facts to study, not convictions to
demonstrate about. But if in reality our process of constitutional
adjudication consists primarily of making value judgments; if we
can ignore a long and clear tradition clarifying an ambiguous text
… then a free and intelligent people’s attitude towards us can
be expected to be (ought to be) quite different. The people know
that their value judgments are quite as good as those taught in any
law school — maybe better.

Enforcing the Founding Document

Ultimately judicial power is not a means to an end, be that
liberal, conservative or anything else, but instead an enforcement
mechanism for the strictures of the founding document. We have a
republic, with a constitutional structure intended just as much to
curtail the excesses of democracy as it was to empower its
exercise. In a country ruled by law and not men, the proper
response to an unpopular legal decision is not to call out the
justices at a State of the Union address but to change the law or
amend the Constitution.

Any other method leads to a sort of judicial abdication and the
loss of those very rights and liberties that can only be vindicated
through the judicial process — which by definition is
counter-majoritarian. Or it could lead to government by black-robed
philosopher kings. Even if that’s what you want, why would you hire
nine lawyers for the job?!

So if we want to have the rule of law, we need judges to
interpret the Constitution faithfully and strike down laws when
government is exceeding its authority. Depoliticizing the judiciary
is a laudable goal, but that’ll happen only when judges go back to
judging rather than merely ratifying the excesses of the other
branches while allowing infinite intrusions into economic liberties
and property rights. Until that time, it’s absolutely appropriate
to question judicial philosophies and theories of constitutional
interpretation — and to vote accordingly.

Regardless of what happens to the Garland nomination or who’s
president come January 2017, the battle for control of the third
branch of government will continue — as will the attention
paid to the resulting confirmation battles.